Chapter 12.12
PUBLIC SIDEWALK CONSTRUCTION AND MAINTENANCE AND PUBLIC RIGHT-OF-WAY AND ALLEY MAINTENANCE
Sections:
12.12.030 Sidewalk construction policy.
12.12.040 Sidewalk maintenance standards.
12.12.050 Duty to reconstruct or repair sidewalks.
12.12.060 Duty to maintain landscaping in the public right-of-way.
12.12.070 Duty to maintain landscaping in the alley.
12.12.080 Voluntary compliance agreements.
12.12.090 Voluntary correction agreements.
12.12.120 Abatement by the City.
12.12.140 Liability for abatement.
12.12.010 Purpose.
The purpose of this chapter is to promote and protect the health, safety and welfare of the City and its citizens by requiring routine sidewalk and landscaping maintenance and preventing visual blight. This chapter establishes public and private responsibilities for maintenance and repair of public sidewalks and landscaping located on public rights-of-way and alleys. (Ord. C-859 § 3, 2015)
12.12.020 Definitions.
A. “Abutting property” means all property having frontage on any portion of a sidewalk, road or public right-of-way or alley.
B. “Sidewalk” means an improved surface constructed for public use by pedestrians.
C. “Public right-of-way” means a right-of-way held by the City for the benefit of the public.
D. “Road” means a public thoroughfare that provides for the movement of vehicles and/or is the principal means of access to abutting properties.
E. “Alley” means a narrow passage between properties. (Ord. C-859 § 4, 2015)
12.12.030 Sidewalk construction policy.
It is the policy of the City to encourage the construction of sidewalks in City neighborhoods where they presently do not exist and to require the construction of sidewalks as a condition of developing improved or unimproved property. All sidewalk improvements, construction, repair and replacement shall conform to approved City standards. (Ord. C-859 § 5, 2015)
12.12.040 Sidewalk maintenance standards.
Sidewalks and adjacent areas shall be maintained by abutting property owners or property occupants in the following manner:
A. No motorized vehicles, trailers, stockpiled materials or objects shall be parked, placed or stored on the curb, planting strip, or sidewalk.
B. The full width of the sidewalk along the entire length of the abutting property shall be kept clear of snow, ice, dirt, debris, leaf accumulations, and any other obstacles or obstructions that would hinder or interfere with safe and easy pedestrian use.
C. Plant material such as grass or weeds shall be promptly removed from cracks, voids or openings in the sidewalk surface.
D. Maintained so that all trees, plants, shrubs and vegetation are continually trimmed and do not intrude into or overhang any portion of the sidewalk to a height of seven feet above the sidewalk surface.
E. Maintained so that trees, plants, shrubs and vegetation are continually trimmed and do not obstruct or obscure any traffic control device, and do not intrude into a three-foot radius around any fire hydrant above a height of six inches from the ground surface. (Ord. C-859 § 6, 2015)
12.12.050 Duty to reconstruct or repair sidewalks.
In the event an abutting property owner or occupant causes any damage to a sidewalk through any act, error or omission including without limitation the planting of any tree or other vegetation on the abutting property, the duty, burden and expense of all necessary maintenance, repair, reconstruction and/or construction of the sidewalk as a result of such damage shall be the responsibility of the abutting property owner or occupant. (Ord. C-859 § 7, 2015)
12.12.060 Duty to maintain landscaping in the public right-of-way.
All landscaped and open space areas in the public right-of-way, between the curb or pavement edge and back of sidewalk, shall be maintained by the abutting property owner and shall be:
A. Kept free of litter, debris, intrusive vegetation, weeds and obstructions.
B. Maintained in a clean, neat, orderly fashion.
C. Maintained consistent with approved construction design plans and other approved landscape plans, if applicable.
D. Maintained so that all trees, plants, shrubs and vegetation are continually trimmed and do not intrude into or overhang any portion of the road to a height of 14 feet above the road surface.
E. Maintained so that trees, plants, shrubs and vegetation are continually trimmed and do not obstruct or obscure any traffic control device, and do not intrude into a three-foot radius around any fire hydrant above a height of six inches from the ground surface. (Ord. C-859 § 8, 2015)
12.12.070 Duty to maintain landscaping in the alley.
All alleys shall be maintained by the abutting property owner and shall be:
A. Kept free of litter, debris, intrusive vegetation, weeds and obstructions.
B. Maintained in a clean, neat, orderly fashion.
C. Maintained so that all trees, plants, shrubs and vegetation are continually trimmed and do not intrude into or overhang any portion of the alley to a height of 14 feet. (Ord. C-859 § 9, 2015)
12.12.080 Voluntary compliance agreements.
The Code Enforcement Officer and/or his/her authorized agents shall investigate and inspect for violations of this chapter, and when a violation is observed, he/she shall attempt to contact the owner of the property or the owner’s agent or resident of the property and make reasonable attempts to seek voluntary compliance with this chapter. (Ord. C-859 § 10, 2015)
12.12.090 Voluntary correction agreements.
A. The Code Enforcement Officer may enter into a voluntary correction agreement with a person responsible for correcting a violation, which may be the owner, agent or occupant.
B. Any such voluntary correction agreement shall be a contract between the City and the person responsible, and shall follow a form to be approved by the City Attorney. It shall be entirely voluntary and no one shall be required to enter into such agreement.
C. In such contract the person responsible shall:
1. Acknowledge that the violation(s) exist, as shall be briefly there described;
2. Acknowledge that it is his/her responsibility to abate the violation;
3. Agree to do so by a certain date or within a specified time;
4. Agree to do so according to any conditions agreed to;
5. The person responsible also shall agree that if he/she does not accomplish the terms of such agreement the City may proceed without further notice to enter the premises and abate the condition, and to recover expenses and monetary penalties as provided by AHMC 12.12.100 but shall provide that if the person does accomplish the terms of the agreement within the timeframe specified therein, the City shall so acknowledge and then shall take no further actions or attempt to recover public cost already incurred.
D. The Code Enforcement Officer may agree to extend the time limit for correction set forth in such agreement or may agree to modify the required corrective action. However, the Code Enforcement Officer shall not agree to extend or modify the agreement unless the person responsible has shown due diligence and/or substantial progress in correcting the violation but has shown unforeseen circumstances which require such extension or modification. (Ord. C-859 § 11, 2015)
12.12.100 Enforcement.
A. Severity. The severity of enforcement of this chapter shall generally correspond to the degree of risk of harm to the public health, safety and welfare. In the absence of an immediate hazard that is threatening to health or public safety, the City shall for first offenses follow the civil penalty procedure.
B. Enforcement Options. When a violation of this chapter occurs, the Code Enforcement Officer may utilize one or a combination of the following enforcement mechanisms:
1. Civil Penalties. The City Council intends that the civil penalties provided in this chapter shall generally be applied to first violations or other violations when deemed effective. At the time a violation of this chapter has been determined, civil enforcement action may be commenced in accordance with the provisions of this section, and may include one or more of the following:
a. The Code Enforcement Officer or a member of the Police Department may issue a citation imposing a penalty upon any person who violates this chapter.
b. The Code Enforcement Officer may, subject to the appeal procedures of this section, suspend or revoke a license, as appropriate, if she/he finds that:
i. The activity is not authorized by a license; or
ii. The licensee is not complying with the terms of the license; and/or
iii. The activity is, in the judgment of the Code Enforcement Officer or his or her designate, adversely affecting or is a hazard to the public health, safety or welfare.
c. Any person who violates any provision of this chapter or fails to comply with an order to comply issued under this chapter shall be subject to a civil penalty. Each day the violation exists shall constitute a new violation. For each violation, the penalty shall be $250.00. The penalty shall be $500.00 for the second separate violation and $1,000 for the third and subsequent separate violations of the same chapter provision or regulation within any five-year period. Total civil penalty shall not exceed $5,000.
d. The civil citation shall contain the following information:
i. File number;
ii. Name of the person cited;
iii. Name of the property owner;
iv. Section of the ordinance or regulation violated;
v. A brief description of the violation of which the person is charged in such a manner as can be readily understood by a person making a reasonable effort to do so;
vi. The date and place at which the violation occurred and the date on which the citation was issued;
vii. A statement of the action, if any, required to be taken to correct the violation as determined by the Director and the timeframe in which to do so;
viii. A statement that a minimum cumulative civil penalty in the amount of $250.00 per day for each violation shall be assessed against the person to whom the notice is directed;
ix. A statement that the determination of violation may be appealed as prescribed by AHMC 12.12.110 and that the per diem civil penalty shall not accrue when the administrative appeal is pending;
x. A certification, made by a duly authorized enforcement official, to the effect that he/she certifies that he/she has reasonable grounds to believe, and does believe, that the person cited committed the violation.
2. Collection of Civil Penalties.
a. Civil penalties assessed may be enforced and collected in accordance with lien, personal obligation, and other procedures authorized by law.
b. The civil penalty imposed pursuant to this chapter constitutes a personal obligation of the person or persons to whom the citation is directed. The City Attorney on behalf of the City is authorized to collect the civil penalty by use of appropriate legal remedies, the seeking or granting of which shall neither stay nor terminate the accrual of additional per diem penalties so long as the violation continues.
c. Settlement of Suits for Collection of Civil Penalties. The Code Enforcement Officer and the City Attorney are authorized to enter into negotiations with the parties or their legal representatives named in a lawsuit for the collection of civil penalties to negotiate a settlement, assign claims to collection agencies, and compromise or otherwise dispose of a lawsuit when to do so would be in the best interest of the City.
d. Liability. Nothing in this chapter shall be deemed to impose any liability upon the City or upon any of its officers or employees, or to relieve the owner or occupant of any private property from the duty to keep their property in a safe and healthy condition.
3. Criminal Penalties. A violation of any of the provisions of this chapter shall constitute a gross misdemeanor. It shall be a separate offense for each and every day or portion thereof during which any violation of any provision of this chapter is committed. Any person who violates any provision of this chapter shall be subject, upon conviction in court, to a fine not to exceed $5,000 and/or imprisonment in jail for not to exceed 30 days. The criminal penalty shall be used when, in the opinion of the Code Enforcement Officer or the City Attorney, the civil penalty will not be effective or timely or when the violation is a second or subsequent violation.
4. Service of Citation. The citation shall be served upon the person or persons to whom it is directed, either personally, or in a manner provided for personal service of notices of complaint in District Court, or by mailing a copy of the citation by certified mail, postage prepaid, return receipt requested, to such person at their last known address. Proof of personal service shall be made at the time of service by written declaration by the person effecting service, declaring time, date and manner by which service was made. Service by mail shall be deemed complete three days after mailing of the citation.
5. Continuing Duty to Correct. Payment of a monetary penalty or criminal penalty pursuant to this chapter does not relieve the property owner of record of the duty to correct the alleged violation or prohibit the City from proceeding with the abatement process described in this chapter.
6. The provisions of this chapter are not exclusive, and may be used in addition to the other enforcement provisions authorized by this chapter, or other City ordinance or applicable regulations. The Code Enforcement Officer may consider use of enforcement mechanisms included in other chapters of this code in a first attempt to achieve compliance, however is not precluded from initiating the abatement process described in this chapter at any time. (Ord. C-859 § 12, 2015)
12.12.110 Appeal.
A. Appeal Procedure.
1. All appeals shall be filed in writing with the Code Enforcement Officer or other such agency as the City may designate. All appeals must be filed within 14 calendar days of the date of the issuance of the citation, decision or interpretation.
2. All appeals to the Hearing Examiner shall contain the following:
a. The names of appellants participating in the appeal;
b. A brief statement setting forth the action appealed and a separate and concise statement of the error alleged to have been committed by the Code Enforcement Officer, and a concise statement of facts upon which the appellant relies to sustain the statement of error;
c. The signature of the appellant(s), telephone numbers and mailing addresses;
d. Verification, by declaration under penalty of perjury, of at least one appellant of the truth of the matter stated in the appeal. Upon receiving the appeal, the Clerk-Treasurer or their designee shall transmit the same to the designated Hearing Examiner as provided herein.
3. Failure of any person to file a timely appeal or failure of any person who has filed an appeal to attend the scheduled hearing shall constitute a waiver of his or her right to an appeal hearing.
4. Costs of Appeal. In cases where the City’s decision is upheld by the Hearing Examiner, said Hearing Examiner shall award the City its reasonable costs of enforcement including those associated with the appeal.
B. Hearing Examiner – Appointment. The City Manager shall appoint one or more Hearing Examiners to hear appeals relating to the interpretation and/or enforcement of this chapter. The Hearing Examiner may not be a City employee and shall not be an employee of the City Attorney’s office. Contracts may be entered into by the person to act as Hearing Examiner, to be compensated as shall be provided therein and paid out of money made available and budgeted therefor.
1. Hearing Examiner – Powers and Duties. A Hearing Examiner shall hear all appeals taken from the administration of this chapter. The Hearing Examiner shall hear evidence presented by the City Attorney and/or the Code Enforcement Officer. The Hearing Examiner shall likewise hear evidence presented by the person appealing the decision or interpretation. The Hearing Examiner shall give substantial weight to the Code Enforcement Officer’s decision/interpretation and shall substitute his/her judgment only upon a showing by the appellant that the Code Enforcement Officer’s decision/interpretation is arbitrary and capricious or clearly erroneous. Formal rules of evidence need not be followed but witnesses shall be sworn by the Hearing Examiner and a written order issued.
2. Hearing Decision. At the conclusion of the hearing on the violation, the Hearing Examiner shall either: (a) affirm the issuance of the notice of abatement if he or she determines by a preponderance of the evidence that the violation exists substantially as stated in the notice of abatement; (b) dismiss the notice of abatement and grant the appeal if he or she determines that the violation does not exist substantially as stated in the notice of abatement; or (c) modify the notice of abatement depending on the specifics of the violation. The Hearing Examiner’s decision shall be supported by findings of fact and conclusion of law based on the record. The Hearing Examiner’s decision should be entered within 10 working days of the conclusion of the hearing, but the failure to render a decision within such timeframe does not affect the validity of the decision. A copy of the Hearing Examiner’s decision shall be mailed to the property owner of record, the Code Enforcement Officer, and to any known tenant or occupant of the property where the violation is occurring or alternately personally delivered or posted on the property. A copy of the final order of the Hearing Examiner shall be mailed to the appellant(s) within three working days following the entry of a written order under this section. Unless otherwise stated in the order, such order shall be final and conclusive 14 calendar days from the date of mailing thereof unless any party of record makes application to the Spokane County superior court for judicial review and stay of enforcement.
C. Representation by Attorney. A person subject to proceedings under this chapter may appear on his or her own behalf or be represented by counsel. The prosecuting attorney representing the City may, but need not, appear in any proceedings under this chapter. (Ord. C-859 § 13, 2015)
12.12.120 Abatement by the City.
A. The City may abate a condition which constitutes a nuisance under this chapter when:
1. The terms of a voluntary compliance agreement pursuant to AHMC 12.12.080 have not been met;
2. A notice of abatement has been issued and the required compliance has not been completed by the date specified;
3. An appeal has been upheld and complete abatement action has not been completed by the date specified;
4. The condition is subject to summary abatement as provided for in this chapter.
B. Summary Abatement. Whenever any nuisance causes a condition, the continued existence of which constitutes an immediate threat to the public health, safety or welfare or to the environment, the City may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the property owner of record as soon as reasonably possible, and may be given either before or after the abatement. No right of action shall lie against the City or its agents, officers, or employees for actions reasonably taken to prevent or cure any such immediate threats, but neither shall the City be entitled to recover any costs incurred for summary abatement, prior to the time that actual notice of same is mailed, to the property owner of record, or personally delivered or posted on the property in accordance with the provisions of this chapter.
C. Authorized Action by the City. Using any lawful means, the City or its authorized agents may enter upon the subject property and may take preventative measures, remove or correct the condition that is subject to abatement. The City may seek such judicial process as it deems necessary to effect taking preventative measures, or cause the removal or correction of such condition. The City may use its own resources to abate a violation.
D. Recovery of Costs and Expenses. The costs of abating a condition that constitutes a nuisance under this chapter, including all incidental expenses, shall be billed by certified or registered mail, with a five-day return receipt requested, to the property owner of record at their last known address and shall become due and payable to the City within 15 calendar days of the date of mailing the billing for abatement. The term “incidental expenses” includes, but is not limited to, personnel costs, both direct and indirect and including attorney’s fees; costs incurred in documenting the violation, removal/disposal expenses, and actual expenses and costs of the City in preparing notices, specifications and contracts associated with the abatement, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing. All such costs and expenses shall constitute a lien against the affected property. The City may, in its sole discretion, contract with third parties for the collection of costs and expenses. (Ord. C-859 § 14, 2015)
12.12.130 Lien – Authorized.
The City shall have a lien for the cost of any abatement proceedings under this chapter or for any of the abatement work that was performed as provided for in accordance with any lien provisions authorized by applicable state law. The lien shall run with the land and shall be of equal rank with state, county and municipal taxes.
A. The Code Enforcement Officer shall cause a claim for lien to be filed for record no sooner than 15 calendar days of the date of mailing the billing for abatement.
B. The claim of lien shall contain sufficient information regarding the notice of abatement, as determined by the Code Enforcement Officer, a description of the property to be charged with the lien and the owner of record, and the total amount of the lien.
C. Any such claim of lien shall be verified by the Code Enforcement Officer, and may be amended to reflect changed conditions. (Ord. C-859 § 15, 2015)
12.12.140 Liability for abatement.
Every successive owner of property who neglects to abate a continuing nuisance upon or in the use of such property caused by a former owner is liable therefor in the same manner as the owner who created it. (Ord. C-859 § 16, 2015)
12.12.150 No duty created.
No particular duty, relationship, liability or obligation of the City or any official to any particular individual, group or entity shall be deemed created because of this chapter or because of any action or inaction pursuant to its provisions or authority. (Ord. C-859 § 17, 2015)
12.12.160 Conflicts.
In the event of a conflict between this chapter and any other provision of this code, or other City ordinance providing for a civil penalty, this chapter shall control. (Ord. C-859 § 18, 2015)